tempt to recede from the forecase contained in these quotations, namely, that the controversy was tending toward adjudication which, if for the plaintiff, could in no event give the structure of the patent the quality of great, or, as it is sometimes called, "pioneer" scope or breadth. The suggested defenses of aggregation, the elements being conceded, immediately drove the patent to other grounds upon which it could seek the support of novelty; and that all of the courts which have passed upon the issue seem to have found such ground and characterized it as, in essence, the compactness, the ingenuity of arrangement, and the like, which justified a finding of novelty and utility in a new, though limited, field, seems impossible to gainsay.

So this court, speaking by way of conclusion upon the controversy, thus sharply waged, said: "The patentee addressed his attention, not to the problem of combining a pump and motor, not to the mere matter of choosing from the art the several elements theretofore introduced which, when combined, would produce the results of combination; but rather to produce a combination for that purpose and adaptable for use in a new and expanding field. It is fair that he be permitted now to assert that the field wherein his structure has proven a great success was before him when his efforts to produce the combination were being exerted. To say that, because the idea of compactness is not referable to inventive genius; that a combined pump and motor was known; that splash lubrication was not new; that the other elements are found in known mechanism; that because any suggestion of invention not drawn from the prior art cannot be precisely pointed out, therefore the structure is a mere aggregation which any one possessing the skill of one competent in the calling might have assembled, begs the question at issue, and would preclude invention in most combination improvements. The defendant entered the field after the patented structure had achieved success and recognition. In its efforts to accomplish the same desired result, it has adopted, not only the idea of the combination, but almost exactly, its size, form and dimensions of parts. This in itself involves recognition by the defendant, not only of the combination, but also of its utility."

Testing out directly the contention of the defendant upon these industrial compressors, we cannot lose sight of the fact that the claim upon the original hearing respecting infringement was limited to structures before the court between which and the patent struc

ture the court considered but few differences that were even claimed to take the former out of the range of fair identity. The court considered them—at least the alleged infringing structures-upon comparison with the patent structure as having not only the same objective (in point of use), "but, almost exactly its size, form and dimensions of parts." And the court observed that upon the issue of infringement this involved the defendant's recognition, not only of the combination, but also of its utility. With this as the situation which furnished the basis for the judgment herein, I conceive that it is entirely fair, in testing out the present contention of the defendant, now to ask, and to answer as best we may, upon the original hearing, and in the light of the grounds upon which inventive novelty was assigned to the patent, what would have been the view of the court had there been brought before it, and sought to be subjected to the charge of infringement, the industrial compressors, which, without exception, show the absence of every structural feature and quality, viz., compactness and the like, upon which the original findings of validity and infringement were based? I do not mean that, if this question could be answered favorably to the plaintiff, that such structures would then have been held to be infringing, must alone conclude the defendant from now insisting that the court has no right to answer the question at all. But, applying the test in a way most favorable to the plaintiff, and recognizing that the court then had before it, as structural subject-matter, a combined pump and motor with encasement and arrangement making it so compact that its high adaptability to use of railway cars proved to be the turning point upon which inventive novelty was accorded to it, it seems impossible to believe that with those limitations in mind it would at that time have been held that an industrial compressor nearly twelve feet long, four feet wide, and eight feet high, would likewise respond to the conception which the court was willing to recognize.

Whether either this court or the appellate court misconceived the art in disposing of what was really a defense of aggregation; whether the defendant mistakenly failed to bring before the court the entire art-the fact is plain that both this court and the appellate court conceived the necessity, in order to declare the law of the patent-that is to say, also its scope-to rest the decision of patentable novelty upon the phase of the structure referred to, viz., compactness, adaptability for a particular use, arrange

challenge the broad view of the master, that interest and depreciation were and are to be calculated in respect of invested capital and assets representing the same. The master had ruled initially that "Interest on capital actually invested, including, of course, interest on borrowed money, will be allowed as a charge in diminution of profits to the extent of its employment in the infringing operations."

Later, and in disposing of pertinent motions made by the plaintiff, the master adverted to the foregoing, and said:

"The master is not disposed to depart from that ruling. The amount of capital originally invested in the business was $500,000. Expenditures for buying up claims against the bankrupt National Electric Company, attorney's fees and commissions for effecting the purchase, are not capital invested in the business. Neither is the so-called 'capital profit' shown in the same exhibit capital invested in the business. It represents merely an estimated excess of value of the assets of the bankrupt over the amount of capital actually paid or invested. Plaintiff's second motion is therefore granted and the interest on capital originally invested will be figured on the basis of $500,000.

"Plaintiff's third motion is granted, and interest figured on the so-called 'capital profit' will be included.

"Upon the plaintiff's fourth motion the master is of the opinion that the proper method of figuring depreciation is on cash and not upon estimated inventory valuations. The original cost, as already stated, was $500,000. No depreciation should be allowed on the moneys paid for the purchase of the claims against the bankrupt or upon the other incidental expenses of making such purchases, such as attorney's fees and commissions, nor upon the so-called 'capital profit.' Plaintiff's fourth motion is granted.

"Plaintiff's fifth motion is that in figuring capital invested for the purpose of computing interest, that invested in plant, machinery and light facilities of manufacture only should be included. This would include interest on moneys borrowed and used for the purchase of raw material, or for pay rolls, and also interest on credits extended to customers, in fact, on working capital generally. This is not in accordance with the former decision, and in the opinion of the master is not proper. The plaintiff's fifth motion is therefore denied."

This excerpt discloses the contention between the parties upon what both conceive to have important bearing (in dollars and

cents if not otherwise) upon the result. And obviously, if the defendant's exceptions could have no office save that of challenging the master's disposition of a conflict in the evidence, if they could serve merely to move the court to reweigh and recast the evidence so as still to present a conflict, to the end that the court substitute its judgment in resolving the conflict, such exceptions should not avail. But they raise, as I conceive it, purely a question of law in this: That when it was disclosed in the case that the defendant, or some one on its behalf, purchased the assets at a bankrupt sale for $500,000, that figure and nothing less should or could be taken as representative of the capital invested, or as the value of the assets thus secured, in the ensuing infringing business. And likewise that figure must be, and no other could or should be, used in fixing the appraisal base against which depreciation, waste, or the like, should be cast. Therefore the record discloses that the master, having before him, or at least having a tender of, evidence, all available and pertinent to prove capital invested, limited the situation to cost in cash and denied the legal efficacy of any other proofs such as may commonly be resorted to in determinations of value. That is the effect of the limitation of original cost price as evidence of value. I do not understand that even an infringer is to be denied the right to assert, and if he can, to prove, that he obtained something of great value at a great bargain; or that the defendant here must be denied the right of saying that it bought a million dollars worth of property for $500,000; and that in ten years ensuing the purchase it had the right-in some situations was in duty bound-to value it at the former figure; or that it in fact was so valued and yielded adequate returns upon that value; or that for the purposes of taxation, and in many other instances, it was obliged to recognize that valuation. And it makes little difference how the excess is characterized― whether capital, profit, appreciation, adjusted value, or simply, value. The subject-matter is property-committed to a certain useand its value in that use as a representative of invested capital is, at the instance of either party, an issue, so to speak, susceptible of determination upon the ordinary range of proofs. It is not to be gainsaid that the amount paid was a circumstance, but it is not, in a legal sense, the exclusive or the overruling fact relevant or competent to prove value.

Defendant's exception, in my judgment, does not in any sense call for dealing with

ex maleficio is referable properly to the origin of his liability; that is, his situation is analogous to that of a trustee, but arising through his wrong. He is viewed as one who has profited through wrongful appropriation of a right, and is therefore called upon to account upon the principles applicable to one against whom the liability to account is initially, contractually, or by other express act or assent, created. It was not and is not intended, howsoever adequate the popular characterization of the situation may appear, that the principles of stating the account should be novel, or that they should be applied to produce purely punitive results. The law, after all, aims to cast the infringer's profits as profits are cast. Therefore, in respect of interest, the view has obtained that although capital was used to exploit a right appropriated without leave of a patentee, it was still the infringer's capital, interest whereon is allowable, and quite regardless of whether the infringer actually paid it as upon borrowing.

Now, upon the modern view, a trustee who fails to insure trust property is guilty of negligence, and he may be called upon to respond for the damages so occasioned by such want of prudence; which, of course, means that, being a trustee, he must take cognizance of the universality of insuring property by men in the careful conduct of their affairs. So, it would be anomalous to withhold from an infringer, merely because his liability is said to be analogous to that of a trustee ex maleficio, credits for disbursements which, had he been a rightful trustee, would have been unhesitatingly given him because the law demands that he incur them as a matter of duty. And as indicated, the doctrine of account as upon a trust certainly cannot be introduced merely to punish the wrongdoer by treating as gains actual disbursements which, had the trust been lawfully created, would be recognized. So, when interest on invested capital is recognized, there cannot be a shadow of principle upon which to withhold allowance for taxes and insurance.

[4] An important exception is directed against the finding of the master upon the so-called repair parts item; and if it involved merely an inquiry respecting the scope of the doctrine of contributory infringement, much less difficulty would attend. Upon argument, and likewise in the briefs, the parties are not in discord upon the terms of the general principle. The plaintiff's argument is attacked because upon the record, so it is said, a purely conjectural element or step

must be introduced to reach a conclusion. There is a finding of something like $67,000 as profits made upon the manufacture and sale of repair parts. It is argued on behalf of the plaintiff that when the making and sale of a large number of perfected devicesinfringing devices-is established, and it further appears that during the infringing period large quantities of parts which are not only duplications of parts of the perfected devices thus sold, but which were in truth sold for the purpose of repair, replacement, or retention as duplicates for emergencies, it is the duty of the court to treat such manufacture and sale of such parts, though not of themselves infringements, as contributions either to (1) the original infringing act of making and selling the completed device, or (2) as contributions to an infringing use (by some one) which must be assumed to have ensued the original infringing act of making and selling.

Upon defendant's motion that repairs be eliminated from the account, the master observed: "It is res adjudicata in this case that defendant is an infringer by the manufacture and sale of compressors covered by plaintiff Christensen's patent. It is conceded in defendant's account filed with the master that it manufactured and sold repair, renewal, and replacement parts for such infringing compressors. Counsel for defendant claim, however, if the master correctly understands their argument, that the manufacture and sale of such repair parts to users of the infringing compressors bought from defendant constitutes merely a contributory infringement, and before it can be compelled to account for profits and damages on such manufacture and sale, the infringement by use on the part of the purchaser must be judicially determined; but this cannot be done until the case at bar is finally decided, and that thereafter the users cannot be proceeded against under the well established rule that the use of the compressors will have been compensated by the decree in the case at bar awarding profits and damages for the infringement by manufacture and sale of the compressors, citing Stebler v. Riverside, 214 F. 550, 131 C. C. A. 96, L. R. A. 1915F, 1101. If this be true, the plaintiffs are in an unfortunate position. Defendant's account shows that the greater part of its profits were derived from the manufacture and sale of repair parts. To protect against subsequent liability for infringement, it would seem that the decree in the case at bar should cover all profits and damages, those derived from the manufac